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The dangers of an Environment Agency inspection

Gateley Legal

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The recent Court of Appeal decision in R (on the Application of the Environment Agency) v Lawrence 2020 is a timely reminder for all businesses to be wary of the Environment Agency inspection regime. 

What happened?

The Court of Appeal has again reminded us all that even when the sentencing guidelines suggest a lower penalty, a judge has the power to uplift the severity of the sentence if considered appropriate. This is the case even if there is an agreement between the prosecution and defence about how the case should be sentenced. 

Why does it matter?

It highlights that once you are prosecuted, the outcome achieved can be outside the realm of what is predicted. Any form of court process is risky  and it is best to invest as much as you can in pro-active steps to avoid falling foul of the regulators and if you are under investigation to try and persuade the regulator to withdraw the proceedings. 

What were the key facts?

The defendant was an operations director (and technically competent person) at a waste recycling facility. The business suffered two very large fires in 2012 and 2013. 

In the original trial, the EA stated that the operations director had failed to heed the warnings given by visiting inspectors, the fire authority, and insurance risk assessor. It was argued that this failure led to the outbreak of a self-heating fire, which raged across the site for several weeks. 

After the first fire, the EA had permitted the company to continue trading and offered additional advice and guidance, which failed to be followed by the business. It was alleged this inaction led to the second fire breaking out in 2013. This second fire put the company out of business and left the EA and local authority with an expensive clean-up operation.

Prosecution  

The EA eventually decided to prosecute three of the directors. The operations and managing directors pleaded guilty in 2019. The final director was acquitted by a jury who found that he was not directly involved or responsible for his co-directors stewardship of operations.   

Sentence 

The operations director was sentenced to a 9-month prison sentence, suspended for a period of 2 years, a fine of £270, a costs order and had to complete 180 hours of unpaid work. In arriving at this conclusion, the judge was exercising his discretion to impose a heavier sentence than the sentencing guidelines recommendations. The operations director appealed on the basis the sentence was manifestly excessive and had failed to apply the sentencing guidelines correctly. The Court of Appeal disagreed and confirmed that it is entirely appropriate for a judge to step outside of the guidelines, where he or she considers it appropriate to do so based on the facts in front of the court. 

Comment

This latest judgment provides the clearest indication yet that sentencing guidelines are not to be considered a straitjacket, tying the hands of sentencing Judges in regulatory cases. Far from it, it appears that there is a wide range of judicial discretion in such matters and that each case will continue to be judged on its own merit.

Chris Grainger of Gateley’s regulatory department on considering the case said: 

“This is yet another example of the importance of obtaining sound legal advice if there is any disagreement with regulatory enforcement authorities at the inspection stage. Too many companies try to deal with adverse inspection findings themselves, only for it to unravel once the matter has passed the point of no return. This case represents the latest in a long line of decisions which show that even when the guidance suggests a lower penalty, it is by no means a guarantee. "

Do you require further advice on regulatory prosecutions?

If you require any advice on regulatory prosecutions and how to avoid them, please contact our experts listed below

Gateley Plc is authorised and regulated by the SRA (Solicitors' Regulation Authority). Please visit the SRA website for details of the professional conduct rules which Gateley Legal must comply with.

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